0
NickDG

Legal repercussions of reporting incidents (was: Delphi fatality)

Recommended Posts

>>Lawyers crawl this site everyday and will feel free to use everyones comments as "expert" opinion if it suits their case.<<

Maybe Lawrocket can jump in here, but I believe unless something written here is backed up by an affidavit, or the actual courtroom testimony of the poster, after both sides have agreed to their "expert" standing, it's just hearsay. And would not be allowed into a courtroom as evidence.

However, what may occur is the lawyers (on both sides) will troll here for an angle to pursue in their case. Then they would need to hire an expert skydiver to give an opinion on that angle in court. And here's where the legal system works. The jumpers, at least the ones I know, who have provided expert testimony in the past have done so on both sides of these issues depending on the merits of the case. And more times than not they get it right.

Back in the 1980s we had a big brouhaha sport wide concerning skydiving and court cases. One side held that anyone that sues an Instructor, an equipment manufacturer, or a DZO was the lowest form of scum sucker and should be summarily banished from the sport. The other side argued that negligence can and does happen and that we do have, like in any other business, marginal operators in the field. And these guys needed to be sued out of existence. When the dust settled the latter opinion seemed to prevail among most jumpers.

My own idea, at the time, when it concerned experienced jumpers being injured or killed was, "Oh well, you pay your money and you take your chances," but I drew the line with students. And I was engaged once, along with a few others, to testify on behalf of a dead student against a DZO I knew to be negligent in several areas. The defendant, realizing the case was hopeless, settled and he's now long gone from skydiving.

And that's an important point. Very few of these cases ever reach a courtroom. And if they do there's nothing written here that's directly going to make a case one way or the other unless the jumper who wrote it gets directly involved. On the other hand, and in a larger sense the things written here do go a long way in schooling newer jumpers to the pitfalls and traps in this sport.

And while there's a lot of baloney posted here I don't think we give enough credit to people's natural ability to cut the wheat from the chaff. In fact, what you do see here, is most folks who post in rebuttal to a good and obvious point are the ones who get it the least and need the info the most. And that's one reason I've changed my mind on, "You pay your money, and you take your chances." Experienced jumpers of today aren't the experienced jumpers of twenty years ago.

Okay, don't go into a tizzy now. What I'm saying is there are a lot fewer up-jumpers overall these days and still fewer who can devote every waking moment to skydiving like we once did. Our experienced jumper corps now contains more professionals from outside of skydiving, and folks who work two or more jobs just to be able to jump on the weekends. These people don't have the luxury of following every little development in the sport and aren't as plugged into the jumper grapevine. So in a way these accident threads have taken the place of what we used to talk about behind the hangar or around the campfire. Admittedly, it's a poor substitute, but it's better than nothing.

If Lawrocket says I'm wrong about the legal aspects I'll be quiet. But if not, let's be careful of putting our priorities in the wrong place. Once your name gets attached to a fatality report, you're dead, gone, and finished and there nothing anyone can do to bring you back. But here it seems we worry more about the legal aftermath, the feelings of the family members, and the overall public's view of the sport. Our number one priority should be keeping our fellow jumpers who remain behind alive & breathing.

And finally, how we censor and moderate here is very important too. I realize some amount of that is necessary as some folks are just downright nasty, have an unfounded axe to grind, or just don't have the common sense god gave a pistachio nut. But in totality when it's all said and done a fatality cause and what should be done about it will shake out in the end if you have the depth perception to see it. But I know many with a good thought to add don't do it here because they are afraid of some perceived consequences. And that skews what shakes out the bottom to the point of why have this section at all? We have the fatality database, if the idea is just to be newsy, and we have the "Blue Skies" section for condolences. So what's this section all about?

I say put a stern disclaimer and warning at the head of this section and let it rock and roll.

NickD :)

Share this post


Link to post
Share on other sites
100% agree. Postings on these forums, especially by anonymous posters, carry about as much weight as "overheard in a bar". Sure they may give lawyers some idea of where to look and what questions to ask, but a good lawyer will find that information anyway.

Personally, I think it would be a shame if these forums became less due to concern about lawsuits. While there is a lot of rubbish and nonsense in the postings, there is also an occasional gem and many opportunities for thinking and learning more about skydiving.
The difference between stupidity and genius is that genius has its limits." -- Albert Einstein

Share this post


Link to post
Share on other sites
Nick - from my experience you are correct.

Some quote from a random person is not going to be admissible. To be admissible, there has to be a person who qualifies as an expert in the particular field. (Personal Anecdote - A case settled where another lawyer who knew I used to skydive wanted to know some info about alternative causation in a chiropractic malpractice case with an ex-skydiver plaintiff - I referred another person, but the plaintiff dropped the case within a couple of days of my being asked for help).

The skyudiving expert must merely staisfy a court that he or she has sufficient experience, training, knowledge, etc., of a subject that is beyonf the knowledge of a common person, that can assist the judge and/or jury in understanding the events. Once the expert gets admitted as an expert, then the expert's opinion stands up to scrutiny. So you need credibility.

Most people think, "Lawyers stand together" or doctors or anyone stand together. Those experts who are mouthpieces do not last long as witnesses because their credibility and objectivity is shot. I've got experts I've used and reused because of the honesty. Here was one exchange:

Dr.: "So, Jerry. What was Plaintiff's offer?"
Me: "$160k."
Dr.: "Tell your client to cut the check. Anything under $500k is probably a good deal."

That's the sort of opinion I like. He won't testify that the doctors didn't fuck up.

And I believe that there are PLENTY of skydivers - particularly experienced skydivers, who will say when asked that "Tigger screwed the pooch." Because a fuck up in skydiving, if it gets to litigation, is typically a somewhat spectacular event. And bad for the sport. "And I was engaged once, along with a few others, to testify on behalf of a dead student against a DZO I knew to be negligent in several areas." - Nick is the example of the perfect expert witness. He'll let you know what he thinks, regardless of the political ramifications. Sure, he probably made enemies, but he likely made friends and got respect for his candor.

Quote

However, what may occur is the lawyers (on both sides) will troll here for an angle to pursue in their case.



Yes. That I can certainly predict. I defended a case where the complaint was pretty much taken from facts cited in an LA Time article. But it's got another side who is trolling the site for angles to defend.

Now, the lawyer would be wise to peruse the site because the basic knowledge allows him or her to ask the right questions. Gonna do a depo of that S&TA? It would be nice to look at the incident report, and the posts on here, to seek questions for an opinion. The base knowledge leads to questions being asked. Then you save money because you hire your expert AFTER all of this to make sense of it. You've done the groundwork, and the expert advice is saved for trial. (Just my methodology. Other attorneys may and DO differ in their approaches).

Quote

But I know many with a good thought to add don't do it here because they are afraid of some perceived consequences.



Worry not about the legal consequence. For most purposes, comments here don't mean shit. No jury will see it so long as a competent lawyer is on the other side.

Wiht regard to theories of negligence, etc., there is little legal consequence. (Note that other consequences can be found in other circumstances).

Nick - I owe you a beer. (It probably makes at least a six pack now)


My wife is hotter than your wife.

Share this post


Link to post
Share on other sites
Note - a heads up question was raised to be by Phree. I think it deserves being stated.

If you are a party to the incident, it may be wise to withhold any comments where another is injured and you say you messed up (i.e., tandem instructors, AFFI's, etc., and a student is injured).

That would be an exception to the "cannot be used" rule, unless you are describing subsequent remedial measures that you took, which are not admissible (for policy reasons).

note: the aformentioned posts should not be considered legal advice. Further questions or concerns should be directed to a legal professional licensed to practice in your jurisdiction.


My wife is hotter than your wife.

Share this post


Link to post
Share on other sites
It's my opinion that in dealing with cops, investigators and lawyers one should say nothing at all. Whatever you say is going to be twisted and screwed around to fit whatever contention they are making.

Unfortunately, here in DZ.com, we are not directly addressing cops, investigators and lawyers and some what-not opinions get posted....we are providing fodder for building those contentions.

YMMV
My reality and yours are quite different.
I think we're all Bozos on this bus.
Falcon5232, SCS8170, SCSA353, POPS9398, DS239

Share this post


Link to post
Share on other sites
...let's be careful of putting our priorities in the wrong place.


Quote



Excellent post as always Nick.

Which made me remember another point that might be worth some consideration regarding your priorities.

I'm old school like Nick in that I've ALWAYS thought ~ya pay yer nickel, strap in and what happens...happens.

However these days, there is a tightrope to walk.

As many know, I'm kind of a 'hired gun' as far as demonstration jumping goes...I helped start a team 25 years ago and jump with several other professional teams.

My business card, among other things lists that I hold a D -Expert- license and a PROfessional demo jumper rating.

Some years back...somehow, in some circle that got translated to an expert 'witness' involving lawsuits about demonstration jumping incidents.

I was contacted on a few occasions for not only an 'informal' opinion, but to be deposed and consequentially appear in court, ~both civil and criminal proceedings.

I've always 'hemmed & hawed' my way out of ever offering either side of any proceedings anything.
(~even to the point of being conveniently out of the country to avoid a threatened sopena.)

Now here's the point regarding 'priorities' I want to make:

Nobody is making the mortgage and putting the kids through college by jumping demos.
Interesting questions come up 'internally' when offered a fairly significant monetary incentive to simply state your opinion.

My priorities are of course my family first, and the slots fill in from there.

Yes a single check for one day equalling what a year of demo jumping brings in could be attractive, but we're not starving and in the long run everybody in my house is better off when I'm a 'happy guy' ;)

~and I don't think I would have been had I chosen to look 'short term' in my decisions.

I wasn't actually present at any of the incidents in question and although I can see how an 'expert' opinion might be helpful as to what someone else 'might' have done, or 'should' have done...

~without being there and privy to ALL the factors, I feel my actual 'expertise' is knowing I should just STFU & remain on the side lines.

Never gave any of that a lotta thought until attending a PIA convention once.
A person I know that IS somewhat of an expert in an area of the industry, from what I understand made the choice to witness 'against' a manufacturer.

...I don't know the details nor to I care, but the way & manner in which this person was treated like a pariah among his peers was truly an eye opener.

This IS a small tight knit community we're a part of, and before anyone becomes involved in any part of the legal system...I urge you to give pause for some thought to your 'long term' priorities.

I'm not offering that what I've done is right or wrong...or what he did is right or wrong, just that any decisions you make may have an impact you may not clearly see or understand at the time you initially make them.


~~Know why California has the most lawyers and New Jersey has the most toxic waste dumps?

That's right, New Jersey got 1st choice! ;)











~ If you choke a Smurf, what color does it turn? ~

Share this post


Link to post
Share on other sites
Quote

...
Now here's the point regarding 'priorities' I want to make:

Nobody is making the mortgage and putting the kids through college by jumping demos.
Interesting questions come up 'internally' when offered a fairly significant monetary incentive to simply state your opinion.

My priorities are of course my family first, and the slots fill in from there.

Yes a single check for one day equalling what a year of demo jumping brings in could be attractive, but we're not starving and in the long run everybody in my house is better off when I'm a 'happy guy' ;)

;)



I have been an expert witness for the defense several times (as an engineer), and I avoid the kind of problem you suggest by telling the attorneys in writing before I even look at the issue that they are paying only for my time, and not buying a favorable opinion. If they won't agree to that, I don't take the case.
...

The only sure way to survive a canopy collision is not to have one.

Share this post


Link to post
Share on other sites
Quote

Quote

...
Now here's the point regarding 'priorities' I want to make:

Nobody is making the mortgage and putting the kids through college by jumping demos.
Interesting questions come up 'internally' when offered a fairly significant monetary incentive to simply state your opinion.

My priorities are of course my family first, and the slots fill in from there.

Yes a single check for one day equalling what a year of demo jumping brings in could be attractive, but we're not starving and in the long run everybody in my house is better off when I'm a 'happy guy' ;)

;)



I have been an expert witness for the defense several times (as an engineer), and I avoid the kind of problem you suggest by telling the attorneys in writing before I even look at the issue that they are paying only for my time, and not buying a favorable opinion. If they won't agree to that, I don't take the case.




Hence my point Doc...B|

You ARE and expert, & in a field where things of the nature you might be called on to testify about are more black & white, especially if you have scruples and adhere to standards, which you obviously do.

In our small community here, what we do is still obscure enough that someone 'WE' might not necessarily consider an 'Expert' could possibly be enticed or even coerced into becoming involved in a situation they don't fully understand.

Kinda best to fall back 'whenever possible' from these things...or at least take sufficient time to consider everything.










~ If you choke a Smurf, what color does it turn? ~

Share this post


Link to post
Share on other sites
Good analysis, Jerry. Just to add a bit to the excellent comments by several people above. I agree that an anonymous post on here will usually be inadmissible. Even a non-anonymous post, even by an eyewitness, will probably be deemed inadmissible if you can't get the poster into court or at least a deposition so he can be cross-examined. The exception to this general rule would be a non-anonymous post made by another person involved in the jump, or by a DZ employee, as that might qualify as a "declaration against self-interest", which is one of the standard exceptions to the hearsay exclusion.

However, if an eyewitness, or someone in possession of some material facts (such as patterns of conduct by the DZO, etc.) who posts about the incident can be identified - either because his behind-the-screen-name identity is known, or he says "I was in the 2-way that exited right before the deceased", etc., then that person can be subpoenaed to testify at a deposition and/or trial (assuming he can be located to be personally served with the subpoena). Once the person is testifying, his posts on DZ.com or elsewhere can be used, at the very least, for the limited purposes of impeaching or rehabilitating his testimony, and/or for presenting expert witnesses with facts to either bolster or challenge their expert opinions.

Share this post


Link to post
Share on other sites
Any idea about how the courts consider things that are written by someone related to an incident?

For example, a DZO didn't like me as a rigger for the DZ writing things like "old and worn" in gear inspection sheets. I was being accurate, but such a statement alone could be taken out of context if there were ever an accident on the gear. I was still approving the equipment as being within safe and reasonable limits, but in terms of its life within those limits, the equipment was indeed old and worn -- and I was improving safety by noting for the next person to inspect the gear, what wear points to look for.

Heck, I could have said the DZO himself was old and worn, but that in itself shouldn't be a bad thing.

Share this post


Link to post
Share on other sites
You posed this to Jerry, but I'll answer it 'cause I'm pushy.;)

Part of your professional function was not just to inspect the gear, but to accurately report your findings on the gear inspection sheets. You had an absolute duty to do so accurately. Indeed, I'd go as far as to say that you could get yourself into hot water by failing to report worn gear where it ought to be. Now, let's say someone gets hurt due to the gear being old & worn. In the course of defending his client, who do you think the DZO's lawyer will point the finger at? You guessed it.

As far as I'm concerned, a rigger deliberately failing to accurately report the true condition of the gear in a gear inspection report is as bad as pencil-whipping a reserve repack card on club ID. Any DZO who wants you to do that should lose you as a rigger.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account. It's free!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
0